Ruth Bader Ginsburg Stanford Rathbun Lecture Transcript 2017

Speaker 2: (00:08)
Ladies and gentlemen, please welcome Stanford University provost, Persis Drell.

Persis Drell: (00:24)
Good evening. Good evening. It is my very great pleasure to welcome you to Memorial Church for this year’s Rathbun Lecture on a Meaningful Life. Tonight, we are deeply honored to have as our speaker, associate justice of the Supreme Court of the United States, Ruth Bader Ginsburg.

This event, as you may know, has a rich history at Stanford. It originated in a lecture that Henry Rathbun, a Stanford law professor in the 1930s through the 1950s, decided to give about the meaning of life on the last day of his business law class one spring. The lecture was such a success that it turned into an annual tradition at Stanford for many years until Professor Rathbun retired. It was revived in 2008, supported by a generous gift to the Office of Religious Life by the Foundation for Global Community, which established the Henry and Emilia Rathbun Fund for Exploring What Leads to a Meaningful Life. Each year, a Rathbun visiting fellow is selected to come to Stanford to deliver this lecture and to spend time with our faculty, students, and staff. In a busy world and in a time of great change in our country, this lecture provides us a welcome moment for self-reflection and moral inquiry.

We are so fortunate this year to have Ruth Bader Ginsburg as our Rathbun visiting fellow. Now, many of you know her by another moniker, as the Notorious RBG. That name got its start several years ago in a Tumblr blog put together by an admiring law student, and it just took off from there. Today, Justice Ginsburg finds herself not only a member of our nation’s highest court, but a cultural phenomenon as well.

Born in Brooklyn, Justice Ginsburg received her bachelor’s degree from Cornell University and her law degree from Columbia Law School. She was a professor of law at Rutgers University from 1963 to 1972, and at Columbia Law School from 1972 to 1980. In 1971, she co-founded the Women’s Rights Project of the American Civil Liberties Union. And she served as the ACLU’s general counsel from 1973 to 1980. She was appointed to the United States Court of Appeal for the District of Columbia Circuit in 1980. President Clinton then nominated her as an associate justice of the Supreme Court, and she took her seat on the court in 1993.

These biographical facts come nowhere close to adequately describing the person who is with us tonight. There really aren’t sufficient words to describe the impact she has had on the law and on the advancement of women’s rights in America. Trailblazing, pioneering, daring. They’re all true, but they still don’t capture it.

Justice Ginsburg went to law school in an era, the 1950s, when very few women did. She faced enormous challenges as a woman and as a mother in pursuing her career in that era. She then turned her career to the cause of battling discrimination on behalf of women and families everywhere. At Columbia Law School, she became the school’s first tenured female professor. At the women’s Rights Project, she argued six cases before the Supreme Court. She played an absolutely central role in establishing contemporary law on equal protection as it relates to equality between the sexes. Many, in fact, have called her the Thurgood Marshall of women’s rights. She was the second woman to join the United States Supreme Court, serving at the time with Justice Sandra Day O’Connor, who has also been a Rathbun visiting fellow with us here at Stanford.

Justice Ginsburg will be in conversation tonight with Dean Jane Shaw, dean for religious life and professor of religious studies here at Stanford. Professor Shaw previously taught history and theology at Oxford for 16 years. And just before coming to Stanford, she was the dean of Grace Cathedral in San Francisco.

We look forward to an insightful and engaging conversation. And now if you will please join me in welcoming to Stanford, Justice Ruth Bader Ginsburg.

Ruth Bader Ginsburg: (06:08)
Thank you, thank you. Please, be seated, please. Please be seated. Thank you, thank you very much, but please be seated.

I thought it might be an appropriate beginning for me to tell you a little bit about my life, and what I’m going to say to you comes from a book called My Own Words. It’s the preface, all in my own words.

Did you always want to be a judge? Or more exorbitantly, a Supreme Court justice? Schoolchildren who visit me at the court, as they do at least weekly, ask that question more than any other. It is a sign of huge progress made. To today’s youth, judgeship as an aspiration for a girl, is not at all outlandish.

Contrast the ancient days in 1956 when I entered law school. Women were then less than 3% of the lawyers in the United States. And only one woman had ever served on a federal appellate court. She was Florence Allen, appointed by Franklin Delano Roosevelt to the US Court of Appeals for the Sixth Circuit in 1934. By the time I got to law school, she was retired and then there were none.

Today, about half the nation’s law students and more than one-third of our federal judges are women, including three of the nine seated on the US Supreme Court bench. Women hold more than 30% of US law school deanships and serve as general counsel to 24% of Fortune 500 companies.

In my long life, I have seen great changes. How fortunate I was to be alive and a lawyer when for the first time in US history, it became possible to urge successfully before legislatures and courts the equal citizenship stature of men and women.

Now, there is a page out of place, so bear with me a moment. It should be not too far from here. Well, if it’s skipped, we’ll go on to the next one, where I speak about teachers who influenced or encouraged me in my growing up years.

At Cornell University, European literature professor Vladimir Nabokov. He changed the way I read and the way I write. Words could paint pictures, I learned from him. Choosing the right word in the right word order, he illustrated, could make an enormous difference in conveying an image or an idea.

From constitutional law professor Robert E. Cushman and American ideals professor Milton Konvitz, I learned of our nation’s enduring values and how our Congress was straying from them in the Red Scare years of the 1950s. But also how lawyers could remind lawmakers that our Constitution shields the right to think, speak, and write without fear of reprisal from government authorities.

At Harvard Law School, Professor Benjamin Kaplan was my first and favorite teacher. He used the Socratic method in his civil procedure class. Always to stimulate, never to wound, Kaplan was the model I tried to follow in my own law teaching years from 1963 until 1980.

At Columbia Law School, professor of constitutional law and federal courts Gerald Gunther, who later served on the Stanford Law faculty for many years. He was determined to place me in a federal court clerkship despite what was then viewed as a grave impediment. On graduation, I was the mother of a four-year-old child. After heroic efforts, Gunther succeeded in that mission. In later years, litigating cases in or headed to the Supreme Court, I turned to Gunther for aid in dealing with sticky legal issues, both substantive and procedural. He never failed to help me find the right path.

Another often asked question when I speak in public, “Do you have some good advice you might share with us?” Yes, I do. It comes from my savvy mother-in-law, advice she gave me on my wedding day. In every good marriage, she counseled, it helps sometimes to be a little deaf. I have followed that advice assiduously and not only at home through 56 years of a marital partnership nonpareil, I have employed it as well in every workplace, including the Supreme Court of the United States. When a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade.

Advice from my father-in-law has also served me well. He gave it during my gap years, 1954 to 1956, when my husband, Marty, was fulfilling his obligation to the Army as an artillery officer at Fort Sill, Oklahoma. By the end of 1954, my pregnancy was confirmed. We looked forward to becoming three in July 1955, but I worried about starting law school the next year with an infant to care for. Father’s advice, “Ruth, if you don’t want to start law school, you have a good reason to resist the undertaking. No one will think less of you if you make that choice. But if you really want to study law, you will stop worrying and you will find a way to manage child and school.” And so Marty and I did, by engaging a nanny on school days from 8:00 to 4:00. Many times after, when the road was rocky, I thought back to father’s wisdom, spent no time fretting, and found a way to do what I thought was important to get done.

Work-life balance was a term not yet coined in the years my children were young, but it is aptly descriptive of the time distribution I experienced. My success in law school, I have no doubt, was due in large measure to baby Jane, my daughter. I attended classes and studied diligently until 4:00 in the afternoon. The next hours were Jane’s time spent at the park, playing silly games or singing funny songs, reading picture books and A.A. Milne poems, bathing and feeding her. After Jane’s bedtime, I returned to the law books with renewed will. Each part of my life provided respite from the other and gave me a sense of proportion that classmates trained only on the law lacked.

I have had more than a little bit of luck in life, but nothing equals in magnitude my marriage to Martin D. Ginsburg. I do not have words adequate to describe my super smart, exuberant, ever-loving spouse. Early on in our marriage, it became clear to him that cooking was not my strong suit. To the everlasting appreciation of our food- loving children, we became four in 1965 when son James was born. Marty made the kitchen his domain and became chef supreme in our home, on loan to friends, even at the court. Marty coached me through the birth of our son. He was the first reader and critic of articles, speeches, and briefs I drafted. And he was at my side constantly, in and out of the hospital, during two long bouts with cancer. And I betray no secret in reporting that without him, I would not have gained a seat on the US Supreme Court.

Then associate White House counsel Ron Klain said of my 1993 nomination, “I would say definitely for the record, though Ruth Ginsburg should have been picked for the Supreme Court anyway, she would not have been picked if her husband had not done everything he did to make it happen.” That everything included gaining the unqualified support of my home state senator, Daniel Patrick Moynihan, and enlisting the aid of many members of the legal academy and the practicing bar familiar with work I had done.

I have several times said that the office I hold, now nearing 24 years, is the best and most consuming job a lawyer anywhere could have. The Court’s main job is to repair fractures in federal law, to step in when other courts have disagreed on what the relevant federal law requires. Because the Court grants review dominantly when other jurists have divided over the meaning of a statute or a constitutional prescription, the questions we take up are rarely easy. They seldom have indubitably right answers. Yet by reasoning together at our conferences and with more depth and precision through circulation of and responses to draft opinions, we ultimately agree far more often than we divide sharply.

Last term, 2015 to 2016 term, for example, we were unanimous at least on the bottom-line judgment in 25 of the 67 cases decided after full briefing and argument. In contrast, we divided five to three, or four to three. Justice Scalia’s death reduced the number of justices to eight. We divided sharply only eight times.

When a justice is of the firm view that the majority got it wrong, she is free to say so and dissent. I take advantage of that prerogative when I think it’s important, as do my colleagues.

Despite our strong disagreements on cardinal issues, think, for example, of control of political campaign spending, access to the ballot, affirmative action, access to abortion, same sex marriage, we genuinely respect each other and even enjoy each other’s company. Collegiality is key to the success of our mission. We cannot do the job the Constitution assigns to us if we didn’t, to use one of Justice Scalia’s favorite expressions, get over it. All of us revere the Constitution and the Court. We aim to ensure that when we leave the Court, the third branch of government will be in as good shape as it was when we joined it.

Earlier, I spoke of great changes I have seen in women’s occupations. Yet one must acknowledge the still bleak part of the picture. Most people in poverty in the United States and the world over are women and children. Women’s earnings, here and abroad, trail the earnings of men with comparable education and experience. Our workplaces do not adequately accommodate the demands of childbearing and child rearing. And we have yet to devise effective ways to ward off sexual harassment at work and domestic violence in our homes.

But I am optimistic that the movement toward enlisting the talents of all who compose “we the people” will continue. As expressed by my brave colleague, the first woman to serve on the US Supreme Court, Justice Sandra Day O’Connor, “For both men and women, the first step in getting power is to become visible to others, and then to put on an impressive show. As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things, and we’ll all be better off for it.” To that expectation, I can only say, ” Amen.”

Do you want me to take it? [inaudible 00:21: 40].

Justice Ginsburg, it’s a huge pleasure and honor to have you with us. Thank you so-

Justice Ginsburg, it’s a huge pleasure and honor to have you with us. Thank you so much for accepting our invitation to be the Visiting Rathbun Fellow. As you know, the Rathbun program is designed to foster thinking about what it means to lead a meaningful life. You’ve said some things about that already, but could you encapsulate what it means to lead a meaningful life for you?

To put it simply, it means doing something outside yourself. I tell the law students I address now and then, “If you’re going to be a lawyer and just practice your profession, well you have a skill, so you’re very much like a plumber, but if you want to be a true professional, you will do something outside yourself, something to repair tears in your community, something to make life a little better for people less fortunate than you.” That’s what I think a meaningful life is, one lives not just for oneself, but for one’s community.

That’s wonderful. Thank you. And do you think that’s the same as a purposeful life?

Yes. I think the purpose is what you aim for.

Great. How has family played a part in your own life and your own meaning in your life?

It plays a very large part. It’s one of the things that drew Justice Scalia and me together because we both care a lot about families. I saw a big change in life in the United States, between the birth of my daughter in 1955 and my son in 1965. When my daughter Jane started school, I was one of a very few working moms.

10 years later, there had been an enormous change. It wasn’t at all unusual to have two-earner families by the middle ’60s. And that made me realize that it would be possible for the first time in history to move the law in the direction of what I call equal citizenship stature for men and women.

So talk a little bit about that. Talk about your own experience and how that led you to that work.

In the days when I went to law school, my entering class at Harvard was over 500 students and only nine were women. There was no anti-discrimination law, so employers were totally upfront in saying, “We don’t want any lady lawyers here, or, “We once hired a woman. She was dreadful.” And how many men have you hired that didn’t live up to your expectations for them?

At any rate, that’s things we didn’t complain about. So for example, Harvard Law School, there were nine women, there were two teaching buildings at that time. Only one of them had a women’s bathroom. So you can imagine if you’re in classes, one thing, much worse, you’re taking a three or four-hour exam and had to make a mad dash to the other building.

But the thing of it was, we never complained. That’s just the way things were. But by the late ’60s, the feminist movement had revived in the United States in part as a result of the Civil Rights Movement, but also as part of a worldwide movement. The UN had declared International Women’s Year. Things were changing all over.

And so it became possible to break down what is referred to as the separate spheres mentality. That is, the woman’s place was with the family taking care of the home, and the man’s place was outside. He was the representative of the family outside the home. And many of our laws were designed to fit that model of the stay-at-home woman and they work-a-day, man. So in the decade of the ’70s, almost all the laws of that kind were gone.

Would you like to took about one to two of the cases that you think were most important in that?

Well maybe I can speak about two cases, and the first one was the turning point case. If I go back, up until 1971, the Supreme Court never saw a gender-base classification that it didn’t think was okay. So if we take the years of the liberal Warren court, and there’s a case called Hoyt against Florida. Gwendolyn Hoyt was what we would today call an abused, battered woman. Her abusive and philandering husband one day had humiliated her to the breaking point. She spied her young son’s baseball bat in the corner of the room, lifted it up, and with all her might hit him over the head. He fell on a stone floor, end of their altercation, beginning of the murder prosecution.

Well, in those days in Hillsborough County, they didn’t put women on juries. Gwendolyn Hoyt thought there was something wrong about that. Not that a jury including women would have acquitted her, but she thought they might better understand her state of mind, her rage at that moment, and maybe they would convict her of the lesser crime of manslaughter instead of murder.

She was convicted of murder. And when the case came to the Supreme Court, challenging the absence of women on the jury rolls, the court’s attitude was, Gwendolyn Hoyt, women have the best of both worlds. We don’t call them for jury duty, but if they come into the clerk’s office and sign up, we’ll put them there. Well, how many men do think would sign up if they had the choice?

So the Supreme Court didn’t get it. And the case before that, Goesaert against Cleary, was a case of a woman who owned a tavern and her daughter was her bartender. The state of Michigan, perhaps with the encouragement of the bartenders league, passed a law that said a woman couldn’t tend bar unless she was the wife or daughter of the bar owner.

The Supreme Court treated that case as part of the backing away from attempting to put down economic and social legislation. And that’s how the case was taught when I went to law school. It was a retreat from the days of the nine old men who gave President Franklin Delano Roosevelt such your hard time he thought about packing the Court.

So that’s what the precedent was, and well, I described it as anything goes. Then Sally Reed came along. Sally had a young son. She and her husband separated and later divorced. When the boy was what the law calls, of tender years, Sally was given custody. When the boy reached his teens, the father came to the family court and said, “Now this boy needs to be prepared for a man’s world, so I should be the custodian.” Sally was distressed and sadly, she turned out to be right. The boy became sorely depressed, and one day took out one of his father’s many guns and committed suicide. So Sally wanted to be appointed administrator of his estate, not for any monetary reasons. There was barely anything there, but for sentimental reasons. Her ex-husband applied a couple of weeks later.

The probate court judge told Sally, Sally was from Boise, Idaho, the law of estate of Idaho, which Idaho had copied from California, but California had already changed its law, it read, “As between persons equally entitled to administer a decedent’s estate, males must be preferred to females.”

Well, there was an obvious reason for that, because in the days before married women’s property acts were passed, a woman couldn’t contract in her own name. She will be sued on her own property. So if you had a choice between the man, the able man, and the disabled woman, naturally, it made sense to choose the man.

Sally Reed thought that was wrong. She was an everyday woman who made her living by caring for elderly or infirm people in her house. She thought it was wrong and that we had a legal system that could set it right. So on her own dime, she took that case to three levels of the court in Idaho, and it became the turning point in the Supreme Court.

And after that, there were a succession of cases, some brought by women, some by men. So if I can tell you my second case, which is a rival for my favorite, is Stephen Weisenfeld, whose wife was a math teacher in high school. She had a healthy pregnancy. The doctor came out to tell Steven Weisenfeld that he had delivered a healthy baby boy, but that his wife had died of an embolism.

Stephen was distressed. He vowed that he would not work full time until his child was in school full time. And he figured out that between part-time earnings and social security benefits, he could just about make it. He went the social security office for what he thought were child and care benefits. And he was told, ” We’re sorry, Mr. Weisenfeld. These are mothers’ benefits.”

That case came to the Supreme Court. There was a unanimous judgment, but the court divided three ways on the reason. That the majority thought, of course, this is discrimination against the woman as wage earner. She pays the same social security taxes as a male wager earner, but they don’t net for her family the same protection. A few thought it was discrimination against the male as parent, because he would have no choice but to work full time. He would not have the choice of taking care of his child personally. And then one, a man who later became my chief, he was then Justice Rehnquist, he said, “This is totally arbitrary from the point of view of the baby. Why should the baby have the care of a sole surviving parent if the parent is female, but not if the parent was male?”

That case was a perfect illustration of what was wrong with the separate spheres mentality. The woman working outside the home did not get equal pay. The man didn’t have the choice to be a caring parent, and the baby would not have the benefit of the love and care of his father.

All of these cases, none of them were test cases in the sense that the American Civil Liberties Union, with whom I was affiliated, went out to find plaintiffs. They were just everyday people who thought something wrong had been done, and who believed that we had a legal system that would respond to that wrong.

So what do you think has to be done now still?

Well, I described the ’70s. In those years, both legislatures and courts rid the statute books of almost all of the overt gender-based classifications. What was left when the overt sex lines were eliminated was unconscious bias, people who didn’t think of themselves as prejudice in any way.

And my classic example for that is the symphony orchestra. Growing up, I never saw a woman in a symphony orchestra. Someone came up with the bright idea, let’s drop a curtain between the people who are auditioning and the judges. It worked like magic. Almost overnight, women were making their way into symphony orchestras.

Now, I wish we could duplicate the drop curtain in every area, but it isn’t that easy. The other illustration that I give is a Title VII case from the ’70s against AT&T for not promoting women to jobs in middle management. So the women who applied did well on all the standard measures and they made it to the last step, which was called the total person test. That was an interviewer interviewing the candidate for promotion.

Women dropped out disproportionately. They flunked the total person test. Why? Because the interviewer, who is almost always a white male, was discomforted with someone unfamiliar, a member of a minority race, a woman, didn’t really feel at ease, but confronted with someone who looked just like him, that fell in his comfort zone. How you get past that kind of unconscious bias, it remains even today a difficulty.

So let me change subjects, and because you just mentioned symphonies, you love opera, famously love opera. I think you’re very keen on the visual arts. I know you have some favorite artists. You talked a bit earlier about how Nabokov was very influential on your reading and writing. So can you talk a bit about the place of the arts and humanities in a meaningful life? Why are they important to you?

They are essential. Yes, opera is my passion, and can I tell them about an opera that was written by a law student a couple of years ago? It’s called Scalia Ginsburg. This is a very talented musician who had been a music major at Harvard and had an MA from Yale, and then decided that in his field it would be helpful to know a little bit about the law.

So he enrolled in law school and he’s taking constitutional law, and reading these dual opinions, Ginsburg Scalia, Ginsburg for the majority, and Scalia in dissent, and Scalia in the majority, Ginsburg in dissent. And he decides this could make a very funny comic opera.

So it opens with a rage aria, a very Handelian rage Aria Scalia sings. That justices are blind. How can they possibly spout this? The constitution says absolutely nothing about this. And then I sing in return that he is searching for bright line solutions to problems that don’t have easy answers. But the great thing about our constitution is that like our society, it can evolve.

The plot is roughly based on The Magic Flute. Justice Scalia, he’s locked in a dark room where he’s being punished for excessive dissenting. I enter through a glass ceiling to help him get out. And, the figure that locks him up is the commendatory, a little resemblance to Don Giovanni’s commendatory, but anyway, commendatory saying, “Why would you want to help him? He’s your enemy.”

I said, “No, he’s my dear friend.” And then we sing a duet that goes, “We are different. We are one, that is different in our approach to reading legal text, but one in our reverence to the constitution and the institution that we serve.” So-

So I want to come to … Oh, sorry. Carry on.

So yes, opera is my passion, but I also love theater. The District of Columbia is blessed with a number of fine museums, the most recent, the African American Museum. In the years I was on the D.C. Circuit, 13 years, the National Gallery was right across the street. So I could pick my room, instead of lunch, and feel that I was in my own palace. There were the crowds there as there are at the Metropolitan Museum in New York.

So in England, there’s a BBC radio program called Desert Island Discs, in which you get to choose eight pieces of music to take to a desert island. We don’t have time for eight today, but perhaps you could choose one that you couldn’t live without if you were on a desert island.

Well, I have to pick two.

You’ll have the pick two. Okay, two is fine.

Those are recordings of Mozart, the Marriage of Figaro and Don Giovanni.

Great, good choice. You talked about the opera about you and Justice Scalia, and that’s part of the importance you give to collegiality. And you talk a lot about the ways in which you and your colleagues on the court are very collegial to each other. You shake hands in the morning, you eat meals together. How do you think we can expand that kind of collegiality to a broader civil and public discourse? How can we disagree well?

Well, when I was growing up, the first branch was very different than it is today. And that persisted, I think, back to 1993 when President Clinton nominated me with the good job, I now hold. I had been general counsel to American Civil Liberties Union for several years. The vote was 96 to three in my favor.

Ninety-six to three in my favor. My biggest supporter on the Judiciary Committee was not the Dem Chair, Senator Biden, although he was certainly in my favor, but it was Orrin Hatch. I think today he wouldn’t touch me with a 10 foot pole. We are still friends, but if it came to a vote on me, I don’t think he would be the supporter that he was in 1993. And it was similar with Stephen Breyer, when he was nominated the next year. It was well into the nineties, the vote in his favor. It hasn’t been that way for the four most recent members of the court and it’s been on both sides of the aisle. I wish there was a way I could wave a magic wand and put it back when people were respectful of each other and the Congress was working for the good of the country and not just along party lines. Someday, there’ll be great people, great elected representatives who will say, “Enough of this nonsense. Let’s be the kind of legislature the United States should have.” I hope that day will come while I’m still alive.

So your husband, Marty, as you said, was a great cook. Eating together is one way that we can have collegiality actually, and talk well, across differences. Do you have a memorable meal you would like to tell us about?

I’ll describe one meal that was a great challenge for Marty. The Scalias and my family celebrated New Year’s Eve together and usually, Nino, who was a great hunter, he would kill Bambi and we would have venison. But this particular New Year’s, he killed a wild boar. Finding a recipe that would be palatable, that was a real challenge for Marty, but it was-

But he did it.

He did, yeah.

We’re going to open up to student questions in a moment, but I want to point out the fantastic tote bag you have, which says, “I dissent.”

And it’s got me on the other side. This is the name of a book by Debbie Levy, who is a lawyer, but decided, all things considered, she’d rather write children’s books and she’s been very successful. And the publisher liked her books so much that they made these tote bags.

I personally love it that Justice Ginsburg is carrying the tote bag. Also because of the Brooklyn notorious RBG, you are known to every generation, including quite small children, and you are not just a public figure, you are an amazing public figure to every generation. How is that?

You know what was copied for the notorious RBG? It’s a notorious B.I.G., The famous rapper and when I was told that this was the Tumbler that these two law students had created, I said, “Well, perfectly understandable. We have one thing in common.” ” You have something in common with notorious B.I.G.?” “Of course. We were both born and bred in Brooklyn, New York.” Starting that Tumbler, I think is a good example of how young people should react to things they don’t like. So this was a second year student at NYU Law School. And when the Supreme Court decided the Shelby County case, this was a case that declared the key part of the Voting Rights Act of 1965 unconstitutional, she was angry. And then she decided, I heard it’s a useless emotion. It doesn’t advance your cause. So then she decided she would start this Tumbler and it began with my descending opinion in the Shelby County case and then it took off into the wild blue yonder from there.

So you are a role model for many. That’s an understatement. You are a role model for many, many, many people. Who have your role models been? Because you lost the page where you talk about them, so I’m giving you the chance to talk about it now.

Growing up, there weren’t too many because women were hardly there. So I had one real and one fictitious role model. The real one was Amelia Earhart. The fictitious one was Nancy Drew. But later in life, I had the good fortune to meet the first woman ever to serve on a U.S. District Court. She was Burnita Shelton Matthews. By the time I got to the D.C. Circuit, she was in her nineties and I would lunch with her whenever I could to hear her stories. She had been counseled to the National Women’s Party, she was going to law school at night, she participated in the suffragist parades, and she picketed the White House, but she would never say a word. She would hold up her sign, votes for women, and not speak if she was hassled by the police, because she didn’t want to risk her chances for admission to the bar.

Well, it happened that when Chief Justice Taft decided the Supreme Court should not be housed inside the Capitol, as it was until 1935, but should have its own building. The site on which the Supreme Court now stands was occupied, a good part of it, by the headquarters of the National Women’s Party. So the government condemned the property and argued this is just a ramshackled old building. It’s not worth anything. Burnita Shelton Matthews, whose specialty was eminent domain, she called as a witness, a member of the Older Inhabitants of D.C. who testified that not only was that site the temporary Capitol, when the Capital burned in the war of 1812, it was also a prison for notorious Confederate spies.

The government was still have none of it. She produced a photograph of a most notorious Confederate spy, happened to be a woman, inside that building. The government caved and Burnita Shelton Matthews won for the National Women’s Party, the largest condemnation awarded that the U.S. Government, up until that time, had ever paid. She was a woman from Mississippi, so she spoke with a soft, southern accent. She wore a lace collar and cuffs, but she was a woman of real steel. You think what it was like for me? It was a piece of cake in comparison to what it was like for those women.

And mentors?

Mentors. Well, no women were teaching in law schools when I went to law school. No women were teaching in the Arts College at Cornell, but I did mention my dear teacher at Harvard. The first class I ever took was Civil Procedure and I was captivated by the way the class was conducted. There was a woman I met much later. She was a Stanford graduate. Her name was Shirley Mount Hufstedler. She was a judge on the U.S. Court of Appeals for the Ninth Circuit, the second in history. I’d mentioned Florence Allen in 1934, but Shirley was the second. She was appointed by President Johnson and then President Carter made her the first ever Secretary of the Department of Education. So she started and she launched that department and did an excellent job, and it was more than rumored that if Carter had a vacancy on the Supreme Court, Shirley Hufstedler would fill it.

She was such a great lady. When it turned out that Carter would not have a Supreme Court seat to fill, he did have a reception in her honor and he invited all the women he had appointed over 25 to District Courts, 11 to Courts of Appeals. And he said at that reception that he hoped he would be remembered in history for changing the complexion of the federal judiciary. He did and no president ever went back to the way it once was. So Shirley, when I got to know her, was what you would call her a role model or a mentor.

And you’ve been very good at saying how important that is to do that for other women throughout your career.

Yes.

Yes. Thank you for that. I think there are lots of students who would like to ask questions, so I’m going to just invite students to come and do that, to come to the central microphone, but I need to just remind you of a few ground rules. Please state your name and what class you’re in, are you a freshman, are you a sophomore, are you a graduate student? Please ask only one question. Express the question as briefly as you can. And however passionate you are, please resist the urge to make a statement as well, that way more of your classmates can ask more questions. May I also say that we, we are all delighted that Justice Ginsburg is here and so we’ll take that as a given, so you don’t need to preface every question with how delighted you are. I think she knows. That way too, we can have more questions. So thank you for that.

Justice Ginsburg has also asked me to remind you that she cannot answer questions on certain topics as follows. She cannot answer any question about any issue pending before the Court or likely to come before the Court, which would include the legality of recent executive orders. She’s just not allowed to talk about it, okay? Nor can she make any comment on the current nominee to the Supreme Court. So if you could observe those rules, that will be great because then she won’t have to say no to you. Thank you. So first questions, are they ready? Just have to put your hand up and come to the center. I think someone’s going to help, but in the meantime, I think someone’s going to also help fix Justice Ginsburg’s microphone a little bit. I have many questions, so if students don’t have any questions, I can just keep going.

Alice: (57:47)
Hi, my name is Alice. I’m a graduate student here, not in the law school. I wanted to ask you, what would you recommend right now for the young people that we are around here to get involved in those issues that are floating right now, or in more general, the issues for women rights that are around, I guess?

We have a diversity of public interest groups in the United States, if I would take my own example. So I was a flaming feminist, and the question was, how could I make the difference? I decided that I would affiliate with the American Civil Liberties Union because it was then the principle civil liberties defender in the United States. It had, up till then, concerned itself with First Amendment questions, free speech, press, freedom of religion, but I thought it was appropriate for it to get into the business of equality, both racial and gender. So it’s hard to do anything alone, but if you get together with like-minded people, join organizations. If your passion is environment, then there are any number of organizations that you can affiliate with.

Jorge Cueto: (59:27)
Hello, my name is Jorge Cueto and I’m a master student in computer science. My question is 100 years from now when people are talking about Ruth Bader Ginsburg, what do you want them to remember?

That I was a judge who worked as hard as she could to the best of her ability to do the job right.

Sasha Landauer: (01:00:04)
Hi, my name is Sasha Landauer and I’m a freshmen. I was wondering, you spoke about the importance of deafness, both in your marriage and on the court, selectively, so how would you balance that with hearing and speaking out against things that seem wrong to you?

Ruth Bader Ginsburg: (01:00:31)
How did I balance…

Your ability to be deaf to certain things.

My ability to…

Persis Drell: (01:00:39)
She’s asking… You gave the advice that I think your mother-in-law had given you on your wedding night, which is choose to be deaf sometimes. How do you balance that with when you need to speak out?

Oh, being deaf is what other people say, not to what I say. The one thing you don’t do is react in anger or annoyance. A sense of humor helps enormously. So if, for example, I was arguing a case before a three-judge Federal Court in Trenton, New Jersey. It was a gender discrimination case. And one of the judges asked me a question. He said, “Well, I thought women had an equal chance today. Why, even in the military they do.” So I answered, “Your Honor, the Air Force still doesn’t give flight training to women.” He responded, “Oh my dear. Don’t tell me that.” Women have in the air forever. I know from experience with my own wife and daughter. So what is one dude? You don’t say you sexist pig. You say, “Yes, Your Honor.” And I know many men who don’t have their feet planted firmly on the ground and then you race ahead with your argument.

Hi, I’m Jordan. I’m a freshman. I was wondering how you define your relationship with other female justices on the court and how female friendships have propped you out throughout your life?

Sandra Day O’Connor was the closest. I did have a big sister, but she died when I was very young. So Sandra was as close to being a big sister to me as one could wish for. When I was a new justice, she didn’t try to douse me with lots of information. She just told me what I needed to know to get by those first few weeks. And she was important to me. In 1999, I had colorectal cancer. Sandra had had breast cancer and was on the bench nine days after her massive surgery. She advised me first, she said, “You’re going to get so much mail, so many well wishes. Don’t try to answer any of it. Just concentrate on getting well.” I felt that I had to show up on the first Monday in October. I had two weeks between my surgery and when court began. And then Sandra said, “So you’re having chemotherapy. Be sure to schedule it for Friday so you can get over it during the weekend.”

She also had an excellent rapport with a chief. In fact, it was rumored, not only were they both at Stanford Law School at the same time, but that he had once dated her. And now my female colleagues, they just, granted have them there. If you came to an argument these days, you would see that Justice Sotomayor and Justice Kagan are not shrinking violets. They’re very active in the colloquy that goes on at oral argument. During the years, Justice Scalia and Sotomayor overlapped. They were in competition for the justice who asked the most questions at oral argument. Scalia generally edged her out just by a bit, but nowadays, she wins hands down.

Priya: (01:05:23)
Hello, my name is Priya and I’m a freshmen. I was wondering if any of the ways in which you approached adversity in your professional career helped you in combating any challenges you faced as a mother and in your courageous battle with cancer?

It’s never to have a defeatist attitude. I told the story earlier this afternoon about my model, when I had pancreatic cancer, was the great mental mezzo-soprano, Marilyn Horne, when she was diagnosed with that often deadly disease.

And she was diagnosed with that often deadly disease. She said, “I will live.” Not that I hope to live. So that was my attitude too. I was going to beat this. One of the things I did and after the colorectal cancer bout, I did a few public interest announcements because I always tried to encourage women to get colonoscopies women think of breast cancer, and they think of ovarian cancer, but they don’t realize what a killer of women colorectal cancer can be.

So the attitude is I’m going to surmount this, whatever it is. The same thing when my husband had cancer at a very young age. We never thought about the possibility of giving up. We just took each day at a time. Then did the best we could.

Aliyah: (01:07:26)
My name is Aliyah. I’m a junior. I was raised on a small tribal community in New Mexico named Santa Domingo Pueblo. And when I was in high school Justice Sotomayor visited and this affected me greatly seeing a woman of color speaking to my community. My question is what communities do you aim to speak to? And what types of people do you aim to inspire?

What kinds of people do I speak to? I speak to students from second grade to the postgraduate level. We are often visited by school groups. I must visit about half a dozen law schools every year. Just before I came to Stanford I was at the Virginia Military Institute that has done a great job of integrating women and Washington and Lee it’s neighbor school.

Speaker 3: (01:08:28)
[inaudible 00:02:34].

Molly: (01:08:35)
Hi, I’m Molly [Plasket 01:08:38]. I’m a sophomore here. And my question for you is I find myself in arguments a lot. And I’m curious to know how you see best to construct a sound argument that is purposeful in persuading people from the other side to kind of get on board with you.

We are trying to persuade each other all the time. It begins when we are considering what requests for review to grant. Then at oral argument very often questions are asked, not so much to elicit a response from the lawyer, but to influence a colleague’s thinking. And then we have our conference, which doesn’t run on very long where we each go around the table and say how we think the case should come out. And then it continues.

And sometimes if you can’t be persuasive orally, you’re writing may be persuasive. I was once assigned a dissent by my senior colleague, John Paul Stevens. It was a dissent for two. And in the fullness of time, that decision came down six to three. The two had swelled to six. So every time I’m in descent, I’m hoping that there will be a repeat. It hasn’t yet happened, but hope springs eternal.

Persis Drell: (01:10:15)
My name is Julia. I’m a graduate student. Has there ever been a time since you’ve been on Supreme Court where you took a side that was opposite your personal morals because you thought the constitution was on the other side?

If I were queen there would be no death penalty. But I take part. I don’t do it what justice Marshall and Brennan said the death penalty under any and all circumstances is a violation of the eighth amendment ban on cruel or unusual punishment. Instead I take part in those arguments and do the best I can to move the law in the direction in which it seems to be going.

I think I mentioned it earlier that last year across the country, there were only 20 executions compared with 98, 10 years ago. And there were only 5 States in the United States that held executions. Even within those 5 States only particular counties.

Chintan: (01:11:36)
Hello, my name is [Chintan 00:05:40]. I’m a junior from Nigeria and I’m studying Chemical Engineering. And my question is, what role do you see the court playing? Like you mentioned, you want to see a reversal of the rising polarization we have in society now. Do you think the Supreme Court should play a more vocal role in speaking to the public and reaching out rather than this more recessed role they’ve traditionally held in society?

In the Supreme Court, unlike the political branches of government is a totally reactive institution. As one fine court of appeals judge said, “The federal judges don’t make the conflagrations. They do what they can to put them out.” So we don’t have an agenda. This year we’re going to take care of say same sex marriage or voter IDs.

We respond to petitions. They come up in cases that begin at least two levels before. So the first thing I will read to inform myself is what other judges have said about the case, what the trial court judge said, the court of appeals. So we don’t have any agenda of our own. You take cases when, as I said in my opening remarks, when other courts divide on what the law of the United States is. That’s what we see as our principle mission. To keep the law of the United States more or less uniform.

Priya: (01:13:26)
Hi, my name is Biola McCauley, and I’m a first year law school student. This is kind of a constitutional law question. But I was wondering, do you to any extent believe that the presence of law enforcement officials at a peaceful protest or rally impinges on people’s first amendment rights?

Do I think the presence of law enforcement officers at protests. If they’re well trained, if they know that people have the right to speak their minds, they’re there to make sure that there is no violence. So I think properly trained police are tremendously important. I think in the recent protest in Washington, DC, we saw that working very well. Police respectful of the people who had come to protest.

Jonathan: (01:14:29)
Hi I’m Jonathan. I’m a freshman. You and Justice Scalia we’re obviously very good friends, almost family. So what would you say were the biggest lessons that you guys taught each other?

We both thought it was important not only to get to the right result, but to write in such a way that at least other judges and lawyers and hopefully more than that would understand. We sometimes, as I would sometimes criticize an opinion of his in draft and say, “This is so over the top. You’re not going to be as persuasive.” I couldn’t always persuade him to tone it down. And he would correct my grammatical errors.

Brittany: (01:15:24)
Hello. My name is Brittany Stinson. You’ve obviously been a part of and witness to many advancements for women. What do you think is the biggest threat facing women and gender equity today?

I mentioned the problem of unconscious bias. It’s not so easy to overcome. Work life balance is another. We don’t have in the world of employment nearly the flexibility that we should have. I had envisioned that in the days in this electronic age, when, for example, you have the entire law library at your fingertips, that it would be much easier for employers to accommodate. But it will take women and men who care about this to make the change in the law firm mentality.

I know that it’s possible because I was married to a man who was a partner in a very large law firm. Everyone in the tax department, which he headed, everyone was gone by 7:00 because that was the time to go home for dinner. In other departments, the culture was that you have dinner at the firm. You come back and work.

It can be done. And I think the law firms will be much healthier places and do as well financially if they accommodate their employees and make it possible to have a balanced life.

Jessie: (01:17:18)
My name is Jesse Dolman and I’m a junior here. I was wondering as it applies to both individual lives and the processes of justice, do you believe in fate or do you believe that we are the masters of our own fate?

Both.

Jessie: (01:17:36)
Is there like a percentage there, or …

[crosstalk 01:17:39] I worked hard to do the best I can, but a little bit of luck, a little bit of divine grace can certainly help.

Tru: (01:17:54)
My name is Tru [Haping 01:17:56] I’m a PhD student in Chinese literature. So in the Silicon Valley, people are very optimistic about the potentials of artificial intelligence. Some speculate that with increasing automation, there will be less and less jobs and they suggest the idea of universal basic income. As a justice what do you think of that idea? Thank you.

Yeah, I think it is a grave concern. I think we have to do much better job than we do now to educate students in to what they can do with their lives and to have the skills to be part of this electronic age.

Dustin: (01:18:56)
My name is Dustin and I’m a senior. And recently with all the change that’s been happening a lot of people have been expressing encouragement that you eat more kale, so to speak, that you can continue doing the public service work that you’re doing for as long as possible. And to that tune, I was wondering who do you want to eat more kale in Washington?

Who? Justice Kennedy. There are three of us on the current court who are well beyond what the French call a certain age. Well beyond. So it’s Justice Breyer, the youngest and the two octogenarians Justice Kennedy and me. A very important part of my life is my personal trainer who’s been with me since 1999 and now also trains Justice Kagan, and most recently justice Breyer.

Cole: (01:20:10)
My name is Cole Holdman. I’m majoring in human biology and I’m a sophomore. You’ve talked much today about your friendship with Justice Scalia.

Scalia.

Cole: (01:20:22)
Do you have a favorite dispute with him that you remember especially fondly?

Do I have a favorite?

Cole: (01:20:27)
Dispute.

He’s dissent in opinion in the Virginia Military Institute case is quite over the top. We were exchanging drafts. Oh, I should tell you this. This is a good example of our relationship. So I circulated the opinion for the court. I am about to go off to my Circuit Judicial Conference when Scalia comes into my chambers and throws down a sheet of paper and says, “Ruth, this is the pen ultimate draft of my dissent in the VMI case. It’s not quite ready to circulate to the court, but I want to give you as much time as I can to respond.”

So I took it on the plane. It absolutely ruined my weekend [inaudible 01:21:33] but I appreciated the extra time I had, well way of a bit too much. So I’m quoting the University of Virginia Case. It wasn’t until 1970, that the University of Virginia at Charlottesville began to admit women. So there was a case in the district court and I referred to the University of Virginia at Charlottesville.

Footnote comes back. There is no University of Virginia at Charlottesville. There is only the University of Virginia. Then I put the university of Virginia at Charlottesville in quotations, quoting from Judge Marriage who was very fine district judge in the eastern district of Virginia. Made no difference. He still kept it.

Speaker 4: (01:22:33)
We have time for one more question.

Gentleman: (01:22:38)
What an honor. Justice Ginsburg. Justice Ginsburg, I’m Gentleman Park, a sophomore studying computer science. Today you remarked that a great thing about the constitution is that it can evolve with a society. At the same time, I think there are core values of this nation that must be remembered and protected, especially if these days. So my question is which beliefs and values of this society do you believe must be changed? Which ones must remain? And how do you distinguish one from the other?

Well, some things that I would like to change. One is the electoral college, but that would … But that would require a constitutional amendment. Which amending our constitution is powerfully hard to do is I know from the struggle for the equal rights amendment, which fell three states shy.

What do I think is enduring? Congress shall pass no law respecting freedom of speech of the press. That right to speak your mind and not worry about big brother government coming down on you and telling you the right way to think, speak and write. That’s tremendously important.

I got to see how important it was when I was going to college in the heyday of Senator McCarthy and our country was straying from its most basic values. But they were people, many of them lawyers who helped bring us back to the way it should be.

Equality, nor shall any state denied to any person, the equal protection of the laws. An idea that was included in the constitution in 1868 with the 14th amendment is not in the original constitution. I think most of you know why, although our Declaration of Independence says all men are created equal. They couldn’t put an equality [inaudible 01:25:06] in the original Constitution or in the Bill Of Rights because of the stain of slavery.

So now I think the notion, I explain it in terms of the opening words of the Constitution, “We the people of the United States in order to form a more perfect Union.” So we start with We The People in 1787. A rather small class. They are white. They are male and they own property. Look at We The People today. All the people who were excluded, from people held in human bondage, native Americans were not part of We The People. Women were not part of the political constituency until 1920 when the 19th amendment finally was adopted.

So the idea that We The People is an [embracive 01:27:15] term that covers everyone who dwells in this fair land. That’s a major theme of our Constitution today.

Speaker 4: (01:26:19)
It’s also a very good note on which to end. Thank you very much.

Thank you so much. Thank you. Thank you.

Ruth Bader Ginsburg Stanford Rathbun Lecture Transcript 2017

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